The nullification of Proposition 8 by both the district and, now, circuit courts is based on the determination that the decision by California voters to deny same-sex couples the same classification with respect to "marriage" as heterosexual partners violated the Fourteenth Amendment to the U.S. Constitution. The ruling reads:
"All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution [particularly the Fourteenth Amendment] simply does not allow for 'laws of this sort'...the People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."Interestingly, the court's ruling in this case only applies to the specific circumstances surrounding Proposition 8 and California. The court was careful to point out that its ruling has no bearing on other states and on the broader question of the ultimate constitutionality of same-sex marriage in general (or any limitations thereof). This adds to the virtual certainty that the Supreme Court will hear the case so as to settle the question once and for all.
I am of the opinion that Proposition 8 and, indeed, any attempt to outlaw same-sex marriage is a blatant violation of the Fourteenth Amendment and its mandate that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...nor deny to any person within its jurisdiction the equal protection of the laws." This "Equal Protection Clause" has been called an embodiment of the Declaration of Independence's proclamation that "all men are created equal," and has served as one of the Constitution's most essential provisions since its addition to the document in 1868. As with most written law, however, its meaning and purview have been subject to continuous interpretation. Immediately following its passage, the Equal Protection Clause aided in the removal of various segregationist laws which banned African Americans from participating in basic civic functions. Many forms of segregation, however, remained intact, under the doctrine of "separate but equal" until it was thrown out by the Supreme Court in the mid 20th century.
The legal battle over same-sex marriage, in my view, is a modern day version of the civil rights struggles which ensued following the passage of the Fourteenth Amendment after the Civil War and beyond. In essence, we have created a "separate but equal" doctrine for marriage with the institution of civil unions, domestic partnerships, and other so-called "marriage equivalents" for same-sex couples.
In the 1954 Supreme Court decision in Brown v. Board of Education which ended school segregation and determined that "separate but equal" was illogical and unconstitutional, the court stated that "separate educational facilities are inherently unequal," which highlighted the essence of why that doctrine was so flawed. Separation implies inequality when it comes to elements as essential to our society as education, facilities usage - and marriage. Why separate when there is no practical reason for doing so unless one group is viewed as lesser than the other? The Supreme Court in Brown wrote that "the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." I would argue that giving marriage licenses to heterosexual couples while granting civil unions to homosexual couples (or denying any legal recognition of their partnership at all) denotes a similar inferiority of the "homosexual group," (to use the same terms). Furthermore, the Ninth Circuit seems to agree when it writes that "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."
Today's decision marks a milestone in the ongoing legal battle for equal rights in this country, not only for same-sex couples wishing to marry, but for all people denied "equal protection of the laws" in one form or another. The constitutional questions involved in this case are as large as the controversy surrounding the issue it seeks to address. Let's hope that when the issue of same-sex marriage eventually reaches the Supreme Court that the justices, like in Brown, once again position themselves on the correct side of history.
To read the full opinion on Proposition 8 by the United States Court of Appeals for the Ninth Circuit click here.
Nice article, Christian. Having now read the decision (only 80 pages), I find the Ninth Circuit's opinion a bit puzzling in the sense that it did not address the question of whether the Constitution's liberty clause confers the fundamental right to marry. In order to bring a case in federal court, there must be a "case" or "controversy", as required in Article III. This is also known as "standing" which means the parties invoking federal jurisdiction must have experienced some concrete injury, which may include the deprivation of a legal right. The Ninth Circuit, however, says Prop 8 denied no substantive rights; it denied to plaintiffs (and other same sex couples) "status" and "dignity." Is the denial of "status" and "dignity" sufficient to confer Article III standing? I doubt the conservatives on the Court would think so. It will be interesting to see if the Supreme Court grants cert, and if so, whether the parties will be asked to brief this question.
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